Blue Light Legal

Welcome to the fifth issue of Blue Light Legal, a quarterly bulletin looking at the latest legal developments and know-how across the areas of commercial contracts, procurement, outsourcing, technology, data protection, employment and construction relevant to the fire and rescue sector.

We hope you enjoy this issue. If you have any comments or feedback, please get in touch with Saman Anwar.

 

Commercial Contracts

• Complex liability clauses in outsourcing contracts – when it comes to drafting liability caps and liability exclusions in technology and outsourcing agreements, recent case law has shown that the consequences of getting the drafting wrong could be significant. Our comprehensive paper (which can be found here) provides crucial insights into one of the trickiest aspects of all commercial contracts: getting the liability provisions right.

 

Procurement

• Delay to the commencement of the Procurement Act – the Government has announced that the coming into force of the Procurement Act 2023 is delayed until 24 February 2025. It will shortly make new regulations to confirm that decision. The Government stated that the reason for the delay was the desire to publish a new National Procurement Policy Statement which 'sets out this Government's priorities for public procurement in support of our missions'. Please read our blog for further details on the delay.
• Direct awards under the Procurement Act – in our latest blog on the key provisions of the Procurement Act 2023, we consider the limited range of scenarios when a contracting authority may award a contract directly to a particular supplier, without any requirement to run a competitive procurement process.
• Dynamic markets under the Procurement Act – the Procurement Act 2023 introduces dynamic markets, a concept which will provide contracting authorities with greater flexibility when choosing procurement routes. This blog provides an overview of dynamic markets, detailing their structure and their implications for suppliers and contracting authorities.
• Lancashire County Council v Brookhouse Group Limited – on 28 June 2024, the Court of Appeal handed down judgment in Lancashire County Council v Brookhouse Group Limited. The judgment made it clear that where no competitive tendering exercise has been carried out (unless a contracting authority has issued a contract award notice explaining why it thought no procurement exercise was necessary) a 6 month limitation period applies. A shorter 30 day limitation period cannot be triggered merely by writing to the individual economic operator. As there has been no competition, it is not possible to give relevant reasons why the economic operator was not successful and the economic operator in those circumstances is not a candidate or a bidder. For further information on the background facts and judgement, please read our summary here.

 

Technology

• Technology projects, managing the principal risks to maximise opportunities – with the scale and speed of recent technology developments, it is increasingly likely that customers will undertake experimental and/or large-scale technology implementation programmes. With that in mind, it is worth revisiting the principal risks businesses need to manage to maximise the incredible opportunities made available by large scale tech projects. Our blog sets out the considerations to bear in mind when implementing technology projects.

 

Data Protection

• New Cybersecurity and Resilience Bill – in the first King’s Speech of the new Labour Government on 17 July 2024, the monarch announced that the long anticipated Cybersecurity and Resilience Bill (CS&R Bill) would be amongst those new laws making their way onto Parliament’s schedule for the next year. Six years on from the implementation of the NIS Regulations 2018 (NIS Regulations) which, in common with our fellow EU Member States of the time, was based on the EU’s NIS1 Directive, the CS&R Bill recognises that the time is ripe for reform. The new CS&R Bill recognises the need to upgrade and expand the UK’s approach to keep in step with an ever-increased cyber threat. Please read our blog here to find out more about the CS&R Bill and how it differs to the NIS Regulations. Please also read a summary of the CS&R Bill on Gov.uk here.

 

Construction

• UK construction insolvency – construction insolvency is not a new problem. With the continued presence of fixed price contracts, in an industry which has always been troubled with cash flow problems and low profit margins, coupled with persistent cost inflation and labour and materials issues affecting the supply chain, it is no surprise that we continue to see insolvencies. Our blog sets out what customers can do to protect themselves from insolvency.
• Dispute resolution clauses in UK infrastructure contracts – most construction contracts have an express dispute clause; however some are far more complicated than others. Recent developments have provided clarity on the application of such clauses and have highlighted certain issues for parties to consider. In this article, we consider the approach to multi-tiered dispute resolution provisions in English law and how such clauses can be strengthened.